Does the Eighth Amendment punishments clause prohibit only punishments that are both cruel and unusual?

With the Supreme Court's recent decisions in the child rape case of Kennedy v. Louisiana (1) and the lethal injection case of Baze v. Rees, (2) the Eighth Amendment has received profuse attention. (3) Perhaps Court watchers are intrigued by the brutality of the death penalty or particularly interested because so much is at stake when the death penalty is at issue. Indeed, the Eighth Amendment and the death penalty are contentious topics because many peoples' notions of decency preclude the use of the death penalty altogether, (4) yet the U.S. Constitution seems to enshrine the practice. (5) The Court appears to struggle with the tension that exists between the language of the Constitution and the Court's own moral beliefs or what it postulates are the beliefs of American society. While in Baze the Court reaffirmed the principle that capital punishment, by the text of the Constitution, does not violate the Eighth Amendment, (6) in Kennedy, the Court revealed its revulsion with the practice, stating that "[w]hen the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." (7)

The Court has attempted to simultaneously satisfy its moral inclinations and the text of the Constitution, but these efforts have resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence. Endeavoring to maintain its neutrality in addressing Punishments Clause cases, the Court relies primarily on its "evolving standards of decency" approach of tallying the number of state legislatures that have prohibited a particular punishment. (8) While thus purporting to focus on the prevalence of state practices, however, the Court has not been able to resist injecting its own value judgments into the analysis to determine the constitutionality of a particular practice. But while attracting some criticism, (9) this infusion of moral values is not at odds with the text of the Constitution. Instead, the language of the Eighth Amendment affirmatively contemplates an assessment of the cruelty of a practice by prohibiting "cruel and unusual punishments." (10) While the Court acts appropriately, then, in assessing cruelty, it is the balancing of the cruelty and unusualness components of the Eighth Amendment that has led to some confusion. For example, the Court has at times stated that a punishment must be both cruel and unusual before it is prohibited under the Eighth Amendment, (11) but, at other times, the Court has indicated that punishments that are, in the Court's opinion, cruel are prohibited regardless of the unusualness of the punishment. (12)

Although the prohibition on cruel and unusual punishments has been the focus of many a scholarly article, (13) neither the Court nor legal scholars have carefully examined how the cruelty and unusualness components of the Clause relate to each other. (14) The answer to this question, though, is important in understanding the meaning of the prohibition, which could, in turn, lend greater clarity to Punishments Clause jurisprudence. Narrowly interpreting the Clause to prohibit only punishments that are both cruel and unusual could render decisions that even torturous punishments, if frequently used, are constitutional. Broadly construing the Clause to prohibit both cruel punishments and unusual punishments alike suggests that cruelty, alone, is a basis on which to find a practice unconstitutional. (15) While this interpretation could breathe new life into the arguments of death penalty abolitionists by allowing them to effectively debate the cruelty of the death penalty despite the fact that thirty-five states, as well as the federal government and the military, currently authorize capital punishment, (16) this interpretation would also limit humane innovations in punishment. Innovations in punishment may seem like a morbid concept, but improving the conditions under which an individual is put to death is important in a society like ours in which capital punishment is prevalent. Without such innovations, governments would be left with only archaic methods of punishment, such as hanging and death by firing squad. (17) Indeed, the punishment of death was liberally used at the time of the Founders, serving as punishment for crimes such as forgery and counterfeiting (18)--crimes that are generally considered less serious than crimes for which death is imposed today. Perhaps grasping the drawbacks of both interpretations, the Court and scholars have seemed to travel down a third path of, at least in substance, focusing primarily on the cruelty component of the Clause and neglecting the unusualness component, going so far as to state that all cruel punishments are unconstitutional without giving any similar status to unusual punishments. (19) While this construction has significant allure, it is entirely at odds with the text of the Punishments Clause. (20)

This Article examines the question of whether the Punishments Clause prohibits both cruel punishments and unusual punishments, just cruel punishments, or only punishments that are both cruel and unusual. Part I traces the history of the Eighth Amendment from the time when the phrase "cruel and unusual punishments" first appeared in the English Bill of Rights in 1688 until the time when the phrase was included as part of the Eighth Amendment, which was ratified over a century later in 1791. Part II reviews the Supreme Court's Eighth Amendment jurisprudence, particularly its "evolving standards of decency" framework developed in Trop v. Dulles. (21) It explains that, while the Court's early decisions interpreting the Punishments Clause focused on the specific text of the provision, its more recent cases have instead employed an amorphous "evolving standards of decency" test to determine whether a practice violates the Punishments Clause. Part III explains how both the Supreme Court and contemporary legal scholars have failed to disentangle the elements of cruelty and unusualness, and Part IV asserts that cruelty and unusualness were originally viewed as distinct components of the Eighth Amendment. (22) Part V examines the specific text of the Punishments Clause and determines that, for every element of the text to be given significance, the Punishments Clause must be interpreted to prohibit only punishments that are both cruel and unusual. It further concludes that the Court's earliest Eighth Amendment cases buttress this interpretation. Part VI explains that, because both cruelty and unusualness are required by the Punishments Clause, each concept must be independently assessed so that each may be given meaning. This Part, while provisionally accepting the Court's examination of state legislative action as a method by which to assess unusualness, briefly explores some new ways in which courts could approach the question of how to assess cruelty independent of unusualness. Part VII examines the consequences of interpreting the Punishments Clause to prohibit only punishments that are both cruel and unusual and of independently assessing these two components of the Clause. It points out that while interpreting the Clause to prohibit both cruel punishments as well as unusual punishments may be captivating, this would undercut the principle of federalism and prevent humane innovations in punishment, ultimately disadvantaging criminal defendants. This Part further explains that independently assessing cruelty and unusualness will lend greater predictability to the Court's jurisprudence in this area. The Article concludes that courts and scholars should seriously consider whether the Punishments Clause requires that a punishment be both cruel and unusual before it is prohibited and suggests that, both because of the original understanding of the language "cruel and unusual punishments" and the importance of clarity, federalism, and innovation, this question should be answered in the affirmative.

THE HISTORY OF THE EIGHTH AMENDMENT

The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (23) Congress adopted the Amendment with little debate in 1789. (24) During the congressional session in which the proposed Amendment was discussed, only two congressmen commented on the topic of the Punishments Clause. (25) First, Representative Samuel Livermore of New Hampshire asked whether the language of the Clause would prohibit the punishments of hanging, whipping, and cutting off a criminal's ears "because [these punishments] are cruel." (26) Second, Representative William Smith of South Carolina opined that the language of the Clause was "too indefinite." (27) Despite the limited nature of these remarks, some additional comments were made on the Clause during the debates in the state ratifying conventions. At the Massachusetts ratifying convention, Abraham Holmes indicated that "cruel and unheard-of punishments," which include racks and gibbets, should be prohibited by the Bill of Rights. (28) Similarly, at the Virginia ratifying convention, Patrick Henry referred to the "interdiction of cruel punishments" as a "sacred right" that must be secured by the Bill of Rights. (29) He reasoned that one thing that distinguished our English ancestors was "[t]hat they would not admit of tortures, or cruel and barbarous punishment," (30) and, without a Bill of Rights, Congress could inflict "unusual and severe punishments." (31) In contrast to this support for the Amendment, Virginia's Governor Randolph opposed including a prohibition on cruel and unusual punishments because he believed that one would have to "presume corruption ... before ... cruel punishments [could be] inflicted" and that the constitutional numerical requirements for passing laws and the independence of the judiciary are "enough to prevent such oppressive practices." (32) Finally...